Time Is on His Side: Conservatives Feel Betrayed by John Roberts

The sense that John Roberts betrayed conservatives with his vote upholding Obamacare is widespread, but it's probably misplaced. Republicans have already seized on his "tax" label, and the young Chief Justice's interpretation of the commerce clause will have ramifications for years. Rush Limbaugh, in a heroic bit of ad-lib rapid response, declared soon after the decision, "We have been betrayed and deceived by the Supreme Court." The decision to call the individual mandate a tax, the radio host said, meant "the Internal Revenue Service has just become Barack Obama's domestic army." Limbaugh was far from alone. The chief justice's Wikipedia page was briefly changed to list him as the "17th Chief Traitor of the United States," as Talking Points Memo noticed. Commenters on conservative blogs and tweeters urged impeachment, Politico's Tim Mak details. The photo at left was posted in the "RINO HALL OF SHAME" album of the Facebook page "SEAL THE US BORDER NOW!" Tank tops screaming "Impeach John Roberts" were quickly posted on CafePress.

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Oh how things have changed! In July 2010, Conservative Examiner's Anthony Martin posted the headline, "Sources Say Smackdown of Obama by Supreme Court May Be Inevitable." Why? Roberts was mad at Obama -- he was even suspicious that Obama might not have been born in America. "The Roberts Court has signaled, in a very subtle manner, of course, that it intends to address the issues about which Obama critics have been screaming to high heaven," Martin wrote. Today? Martin has no more faith in the chief justice. The Obama administration's defense of Obamacare made no sense, Martin writes, so Roberts' upholding the law "is tantamount to the Court making law out of thin air, something that Roberts as a so-called 'conservative' claimed he rejects. Thus, at best Roberts is insane. At worst he is not a conservative at all but a plant, a closet liberal who is no more worthy of serving on the Court than the other Constitution killers--Kagan, Sotomayor, Ginsberg, and Breyer."

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Limbaugh laid out what this means -- bureaucracy declaring war on the rest of us:

And we, the American people, have just been deceived in ways that nobody contemplated. And what we now have is the biggest tax increase in the history of the world. What we have been told by the chief justice of the Supreme Court and four liberals on the court: Obamacare is just a massive tax increase. That's all it is. Obama lied to us about that. The Democrats lied. "It wasn't a tax. There was no way it was a tax." ...

The chief justice of the United States Supreme Court, John Roberts, said, "It is not our job to protect the people from the consequences of their political choices." Not our job.

Well, what about when we are deceived? The court upheld a law that was not what we were told it would be. What has been upheld here is fraud, and the Internal Revenue Service has just become Barack Obama's domestic army.

Speculation quickly grew that Roberts had originally voted to strike down the law but cowed to pressure from Democrats. Writing at The Volokh Conspiracy, David Bernstein wonders whether Justice Antonin Scalia's dissent was originally the majority opinion, since Scalia repeatedly refers to Justice Ruth Bader Ginsberg's opinion as "The Dissent." Bernstein writes, "If so, was [Roberts] responding to the heat from President Obama and others, preemptively threatening to delegitimize the Court if it invalidated the ACA?" Breitbart's Joel B. Pollack finds the theory convincing: "The fact that the Chief Justice's reasoning is so flimsy is yet another piece of evidence that he may have made a late switch--and under pressure... If Chief Justice Roberts thought he was preserving public trust in the Supreme Court today, he will quickly learn he has done the opposite--not least because Democrats define bipartisanship as complete capitulation."

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Hot Air's Ed Morrissey writes that conservatives were worried about Justice Anthony Kennedy, but it was Roberts they should have feared all along. "JOHN ROBERTS BETRAYED THIS COUNTRY" writes conservative blogger Big Dog. The Tea Party Patriots' Jenny Beth Martin told BuzzFeed that Roberts' decision would go down in history as just as bad as Plessy v. Ferguson (that's the "separate but equal" one) and Dred Scott v. Sanford (that one held that slaves and descendants of slaves were not U.S. citizens). "I think that right now today people feel betrayed by the majority of the court," Martin said.

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But they should not feel so betrayed. In a way, Roberts gave Republicans a gift: Obamacare is a tax. What more perfect way to campaign against Obamacare than by labeling it as a tax, one of the few issues where Republicans have a solid polling advantage over Democrats? The Drudge Report is linking to National Journal's post titled, "Roberts Labels Obama a Tax Raiser." (WhiteHousePressCorps tweets the photo at right.) There are signs Republicans are already picking that message up. "The Supreme Court in effect held that the Democrats imposed a tax on every American," House Majority Leader Eric Cantor's press office tweeted, linking to a post by The Washington Post's Jennifer Rubin. "Court decision will focus attention on tax in obamacare and make clear it is largest tax increase in history-big blow to economy," Newt Gingrich said. And for ultimate anti-tax guidance, there's Grover Norquist, who tweeted, "So Obamacare is one big tax. SCOTUS says thatmakes it constitutional. It also makes Obama's 2008 campaign promise to tax only rich A BIG LIE."

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But whatever usefulness the "tax" line is for Republicans in 2012, remember that Roberts is only 57; he will be the Chief Justice for a long, long time — no matter who wins in 2012. Those looking to the longer game that Roberts is playing note that even though his decision left Obamacare largely intact, his rejection of the commerce clause as the basis of government regulation may serve as precedent for decades. As George Will writes, Roberts may have turned back Constitutional law back to the 1960s and revived the "venerable" (to Will, Roberts, and other small-government conservatives) tradition "of viewing congressional actions with a skeptical constitutional squint, searching for congruence with the Constitution’s architecture of enumerated powers." Ron Brownstein, editorial director of National Journal, thinks the clock may have been wound even further in reverse, telling our John Hudson at the Aspen Ideas Festival, "This is probably the most important restriction on the commerce clause since the decisions of the 1930s." Time will tell what impact this decision has on the shape of the government—and Roberts has plenty of time.